ORDER Marvin Bieghler is scheduled to be executed by the State of Indiana after midnight on January 27, 2006. Earlier today, the United States District Court for the Southern District of Indiana denied Bieghler’s request (contained in a complaint filed under 42 U.S.C. § 1983) for a stay of execution. This afternoon, Bieghler filed a notice of appeal and a request for a stay of execution citing, among other things, the grant of certiorari issued by the United States Supreme Court on January 25, 2006, in Hill v. Crosby, No. 05-8794.
Clarence Hill, the petitioner in that case, raised the same Eighth Amendment claim that Bieghler raises here, and he did so at the eleventh hour. Hill was denied relief by the United States Court of Appeals for the Eleventh Circuit two days ago. See Hill v. Crosby, 437 F.3d 1084 (11th Cir.2006). The grant of certiorari in Hill was apparently not called to the attention of the district court when it acted this morning. We do not look favorably on eleventh hour requests for stays of execution. They are often the product of dilatory motivation, a tactic which courts should never encourage.
That, plus the State’s offer (apparently rejected by Bieghler) to not oppose “a reasonable increase in the dosage of the agents to be used in the injection,” augurs for denying Bieghler’s request. Nevertheless, we cannot overlook the somewhat surprising grant of certiorari and stay of execution by the Supreme Court in the Hill case. Although it’s possible that the precise issue raised here by Bieghler may differ from the apparent procedural issue advanced by Hill (the availability of § 1983 to his claim), we can’t comfortably be certain of that at this time.
So today, the Supreme Court’s action in Hill, and only that action, moves us to favorably entertain Bieghler’s request. Accordingly, until further order of the court, the execution of Marvin Bieghler is ORDERED STAYED.